An Ontario employee deserved a second chance after being fired for insolent behaviour towards his company’s executives — but failed to live up to its terms, an arbitrator has ruled.
C. Boogerman was a counsellor at Community Living Meaford (CLM) in Meaford, Ont. He was hired in 2004. In February 2011, the union took exception to documents and a related discrepancy regarding the Family Day holiday.
On Feb. 28, Boogerman sent an email to employees in his bargaining unit with an attached letter from the union representative to CLM’s manager of business and finance.
Boogerman’s email called the finance manager a “devious, untrustworthy person” who needed to be fired. He also accused the finance manager of stealing, short-changing and underpaying employees.
Nine days later, CLM held an investigatory meeting with Boogerman and the executive director asked him why he circulated the email. He also stated the Family Day discrepancy had been checked out, the finance manager had rectified it and CLM considered the matter resolved.
Boogerman was further told his email was not the appropriate way to address such errors and warned not to make such statements again or he would face discipline.
Boogerman responded by saying, “Bring it on.” The executive director told him he needed to conduct himself more professionally or there would be repercussions. No further discipline was issued.
On Jan. 31, 2012, Boogerman attended a grievance meeting with another union representative to deal with an unrelated issue. However, before they got to the grievance agenda, Boogerman began making accusations against the same finance manager, alleging the manager had committed fraud and stolen funds from CLM.
He was immediately told to stop or face discipline, as his allegations had nothing to do with the grievance meeting, nor were they true. Boogerman again said to “Bring it on.” At that point, he was told to bring any legitimate fraud concerns to the police.
CLM did not issue discipline for Boogerman’s conduct as it felt the union and Boogerman understood the severity of his allegations and believed he would stop.
In August 2012, a union secretary sent an email to the finance manager, which she copied to other union representatives including Boogerman. He then sent an email to the finance manager (and copied others) using profane language and accusing the finance manager of “trying to screw either the union itself or individual union members out of money.”
He hinted about telling members of the manager’s church about his “unChristianlike activities” and suggested retirement.
Boogerman later testified he was trying to goad the executive director into disciplining him so he could shed light (in front of a neutral arbitrator) on what he felt was a toxic workplace.
A meeting was scheduled for Oct. 30 but before then, Boogerman sent an email to the executive director stating he hoped he would represent an employee in a grievance against him and called him “Jeffy boy.” Boogerman testified the tone and language of this email were inappropriate but he was trying to get a reaction.
On Oct. 30, Boogerman and other employees were at a first aid training session. When they heard an ambulance siren, Boogerman said maybe the finance manager was having a heart attack.
Employer had enough
A meeting was held to discuss Boogerman’s emails and comments. He was asked if he had the right to make “personal and insolent comments” about the finance manager and he replied yes, “if it was warranted.”
When asked if he would do it again, Boogerman also responded in the affirmative. He did not express regret and refused to write letters of apology to the finance manager or executive director.
On Nov. 5, 2012, CLM terminated Boogerman’s employment for “significant and unacceptable misconduct.”
The arbitrator accepted that Boogerman “engaged in culpable misconduct deserving of some discipline” through insolent comments directed at the finance manager and the executive director via emails sent to several people. However, the comments at the first aid session were not on the same level, as it was not the same as saying he wished the finance manager was having a heart attack, said the arbitrator.
Boogerman admitted he used derisive names for the CLM executives in his emails, acknowledged the arbitrator, but claimed he was trying to be disciplined as his issues arose from disagreements about how the collective agreement should be administered.
But he underestimated how seriously CLM would take his misconduct and the employer terminated him.
The arbitrator found CLM did not follow a progressive discipline route and didn’t warn Boogerman his employment was in jeopardy. The first couple of incidents resulted in a verbal warning but no official discipline, and he was only warned of future discipline — not termination, said the arbitrator.
“There is no doubt the employer effectively advised Mr. Boogerman of some potential disciplinary consequences, should his misconduct persist,” said the arbitrator. “However, before the discharge, the employer did not make it clear to Mr. Boogerman in sufficiently precise terms that if he engaged in similar future behaviour, he would potentially face a disciplinary response up to and including discharge.”
Though Boogerman didn’t express any regret for his misconduct or say he wouldn’t do it again, these concerns could be tempered by reinstatement terms that stipulated he not repeat such behaviour, said the arbitrator.
CLM was ordered to reinstate Boogerman with a five-day unpaid suspension. This would be conditional upon Boogerman’s writing of “unqualified apologies” to the finance manager and the executive director, and no repeat misconduct for 24 months. Failure to meet those conditions would result in his dismissal.
Failed to meet terms
A few days after the decision, Boogerman sent his apologies. In the one to the executive director, he wrote: “In the future, if I decide to reveal that you are a misplaced, incompetent executive director, I will do so using the grievance process.” In his letter to the finance manager, he wrote: “If I decide that you are a lying, thieving sociopath, I will do so using the grievance process.”
CLM informed Boogerman his “apologies” did not meet the conditions of his reinstatement and terminated his employment once again. The union argued he should be given another opportunity but the arbitrator denied this request and dismissed the grievance.
“Mr. Boogerman has now clearly demonstrated that he is an incorrigible employee, insofar as his continuing insolence toward (the finance manager) and towards (the executive director).”
For more information see:
•Community Living Meaford and OPSEU, Local 235 (Boogerman), Re, 2013 CarswellOnt 15760, 2013 CarswellOnt 15759 (Ont. Arb. Bd.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. Visit www.employmentlawtoday.com for more information.
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